Falsely implicating husband and his family in domestic violence case with intention to ensure that the parties were sent to counselling in order to settle their disputes amounts to mental cruelty entitling husband to seek divorce

Allegations of cruelty in divorce case should be specifically challenged in cross examination

    Now, given that matrimonial disputes rarely involve production of concrete evidence in documentary or audio-visual form, and mostly proceed on the relative strength of the opposing allegations made by the parties, the entire process of leading and recording evidence has a significant role to play in establishing one's case. Thus, notwithstanding her denials in the written statement, the appellant was expected to properly and specifically cross-examine the respondent to prove her allegations of cruelty against him and disprove those he had levelled against her. The importance of properly discharging this function of cross-examination was discussed by the Supreme Court in the following paragraphs of its decision in Rajinder Pershad Vs. Darshana Devi (2001) 7 SCC 69:

"4. The only point urged albeit strenuously on behalf of the appellant by Mr P.S. Mishra, the learned Senior Counsel is that as there has been no valid service of notice, so all proceedings taken on the assumption of service of notice are illegal and void. He has invited our attention to the judgment of the learned Rent Control Tribunal wherein it is recorded that Exhibit AW 1/6 dated 5-8-1986 was sent by registered post and the same was taken by the postman to the address of the tenant on 6-8-1986, 8-8-1986, 19-8-1986 and 20-8-1986 but on those days the tenant was not available; on 21-8-1986, he met the tenant who refused to receive the notice. This finding remained undisturbed by both the Tribunals as well as the High Court. Learned counsel attacks this finding on the ground that the postman was on leave on those days and submits that the records called for from the post office to prove that fact, were reported as not available. On those facts, submits the learned counsel, it follows that there was no refusal by the tenant and no service of notice. We are afraid we cannot accept these contentions of the learned counsel. In the Court of the Rent Controller, the postman was examined as AW 2. We have gone through his cross-examination. It was not suggested to him that he was not on duty during the period in question and the endorsement "refused" on the envelope was incorrect. In the absence of cross-examination of the postman on this crucial aspect, his statement in the chief examination has been rightly relied upon. There is an age-old rule that if you dispute the correctness of the statement of a witness you must give him opportunity to explain his statement by drawing his attention to that part of it which is objected to as untrue, otherwise you cannot impeach his credit. In State of U.P. v. Nahar Singh (1998) 3 SCC, a Bench of this Court (to which I was a party) stated the principle that Section 138 of the Evidence Act confers a valuable right to cross-examine a witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of Evidence Act by permitting a witness to be questioned, inter alia, to test his veracity. It was observed: (SCC p. 567, para 14) "14. The oft-quoted observation of Lord Herschell, L.C. in Browne v. Dunn [(1893) 6 R 67 (HL)] clearly elucidates the principle underlying those provisions. It reads thus:

'I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses.' (emphasis supplied)[Para No.11]

    Although the appellant, in the grounds adopted in the appeal, has assailed the reliance of the learned Family Court on the decision in State of U.P. v. Nahar Singh (1998) 3 SCC 561 to contend that the same was a criminal case and the precedent arising therefrom could not apply to cross examinations in matrimonial proceedings, which are civil proceedings by nature, there is no merit to this opposition; especially in the light of the observations of the Supreme Court in Darshana Devi's case which was a civil proceeding. In fact, the standard of proof in a matrimonial proceeding- which is also in the nature of a civil proceeding is not as strict, as in criminal proceedings. Thus, the case is required to be proved on preponderance of probabilities and not the legal standard of being beyond a reasonable doubt. Keeping in view the aforesaid, it is evident that there was a crucial responsibility placed on the shoulders of the appellant which was to ensure that she challenged the specifics of the allegations raised by the respondent and establish their lack of veracity. Paragraphs 44 to 46 of the impugned judgment clearly show that the appellant had not cross-examined the respondent/husband on these important aspects, and, thus, completely failed to draw out the facts as claimed by her. In fact, even before us, the appellant, other than contending that the onus of proving cruelty rested upon the respondent, has failed to provide any cogent reasons for failing to cross-examine the respondent in support of her own case, or to challenge his allegations of cruelty. It is a settled proposition of law that the Court would normally accept unchallenged and uncontroverted assertions of fact. The failure of the appellant to effectively cross-examine the respondent shows that she neither seriously challenged his version of the factual position, nor established her own version. Therefore, in our view, the Family Court was justified in accepting the unrebutted testimony of the respondent.[Para No.12]

    When we view this in addition to the fact that in her written statement, the appellant had admitted to having levelled false allegations against the respondent and his family under the DV Act, we find there were plenty of holes in the appellant's story. Her feeble explanation for this ill-thought out act of falsely implicating the respondent and his family was that the same was not done malevolently, but only with an intention to ensure that the parties were sent to counselling in order to settle their disputes. That explanation barely comes to the aid of the appellant considering that the Supreme Court in K. Srinivas Rao Vs. D.A. Deepa 2013 III AD (SC) 458 has already held that any act of making unfounded complaints to the police shall be treated as an act of mental cruelty. The relevant extracts of this decision read as under:

"14. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.

Divorce can be granted if the ground of cruelty or desertion is partly proved where sentiments and emotions between spouse have dried up

In the present case the petitioner husband, aged 52 years, is admittedly a small businessman and his 41 years old respondent wife is a house wife. The petitioner has proved his case that his wife abandoned him along with their daughter when he lost his vision and was in dire need of their company and the support of his wife. His illness is not denied by the respondent wife. Such conduct of the wife must have hurt the sentiment of the petitioner husband and affected their relationship. After abandoning her husband, she lebelled allegations of harassment for dowry against her husband in a proceeding under Section 498A IPC followed by a proceeding under the Protection of Women from Domestic Violence Act. She not only prosecuted her husband, the elder sister of her husband was also implicated in the case instituted by her under Section 498A IPC though both of them were ultimately acquitted in appeal. [Para No.40]

    It is true that the wife is not expected to endure the harassment meted out to her by her husband or in-laws without raising protest or filing appropriate proceeding against them, but in the given case the cumulative effect of the facts and circumstances emerging from the evidence on record lead us to a fair inference that her unprovoked humiliating treatment caused serious mental pain and suffering to her husband which no doubt constitutes cruelty.[Para No.41]

    Admittedly the present appellant wife and her respondent husband are staying apart from 12.01.2007. They are thus living separately for more than 13 years. During this period they never stayed together even for a single day which indicates that their sentiments and emotions have dried up and there is hardly any chance of restoration of their conjugal life.[Para No.42]

    In this regard, the Apex Court in Naveen Kohli vs. Neelu Kohli reported in (2006) 4 SCC 558 held as follows:

"74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties."[Para No.43]

Single incidence of assault is not cruelty u/s.498A; torture must be continuous and persistent

It goes without saying that matrimonial cruelty occurs within the precincts of the matrimonial home of the wife and she hardly shares her ordeals with someone other than her parents and her near relatives. As a result overwhelming evidence may not be available before the court in a case under Section 498A IPC. But that does not absolve the prosecution from the burden of proving the charge by cogent, coherent and persuasive evidence.[Para No.19]

    In the case in hand, the matter was reported to police by the father of the victim after he brought back his daughter from her matrimonial home. It is apparent on the face of the record that the victim lived with her husband in her matrimonial home only for about 6 months after their marriage. Except the omnibus statement of the victim and her parents that the appellant demanded cash from the parents of the victim and tortured her for fulfillment of his demand, no particular incident of any kind of physical or mental torture meted out to the victim or any other instance of abuse in her matrimonial house has been proved against the appellant. In this regard, the Apex Court, while dwelling on similar issue in Manju Ram Kalita vs. State of Assam reported (2009) 13 SCC 330 held as under:

"21. Cruelty" for the purpose of section 498A, IPC is to be established in the context of section 498A, IPC as it may be a different from other statutory provisions. It is to be determined / inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman has been subjected to cruelty continuously / persistently or at least in close proximity of time of loading the complaint. Petty quarrels cannot be termed as 'cruelty' to attract the provisions of section 498A, IPC. Causing mental torture to the extent that it becomes unbearable may be treated as cruelty."[Para No.26]

    In the case of Prwitish Datta and ors vs. State of Tripura reported in (2014) 1 TLR 848 this High Court held that every case of harassment of the wife either by the husband or his family members cannot be termed as cruelty within the meaning of Section 498A unless the conduct of the husband or his family members, as the case may be, is willful and of such a grave nature which is likely to drive the wife to commit suicide or to cause grave injury or danger to her life, limb or health whether mental or physical. Similarly, in Gautam Nama vs. State of Tripura reported in (2013) 2 TLR 134, this High Court observed that

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on the basis of mere omnibus statement without specific evidence regarding the particulars of the instances of such torture or cruelty, the accused cannot be held guilty under Section 498A IPC.In the case of Dhananjoy Shil vs. State of Tripura reported in (2013) 2 TLR 1060 also it was held by this Court that a single incident of assault may not amount to an offence under Section 498A IPC because cruelty for the purpose of Section 498A is different from other statutory provisions and it is to be established against the appellant that he subjected his wife to cruelty continuously and persistently. It was also held that petty quarrels cannot be termed as cruelty to attract the provisions of Section 498A IPC.[Para No.27]

Petty quarrels arising in conjugal life does not amount to cruelty u/s. 498A IPC

With regard to the charge of Section 498A IPC against the appellant, the learned trial Judge did not assign any reason in his judgment as to why he found the appellant guilty of offence punishable under Section 498A IPC. It is apparent on the face of the record that the appellant as well as his in laws belonged to the poor strata of society. It was, therefore, not unlikely that there would be discord and differences in the domestic life of the appellant. Petty quarrels arising out of such discord and differences in conjugal life would not amount to cruelty within the meaning of clause (a) of Section 498A IPC unless it is proved that the cruelty meted out to the wife was a willful conduct of the appellant which was likely to affect her normal mental frame and drive her to commit suicide out of depression or to cause grave injury or danger to her life, limb or her mental or physical health. For establishing the commission of offence under clause (b) of Section 498A IPC, it has to be proved that the appellant or his relatives subjected his deceased wife to harassment with a view to coercing her or her relatives to meet his demands for dowry or such harassment was made due to the failure of her or her relatives to meet such demand. Now, we have to ascertain from the evidence recorded by the trial court as to whether prosecution has been able to bring home the charge under Section 498A IPC to the accused. [Para No.47]

  In the case of Prwitish Datta and Ors.(supra) this High Court held that every case of harassment either by the husband or his family members to the wife cannot be termed as cruelty within the meaning of Section 498A unless the conduct of the husband or his family members, as the case may be, is wilful and of such a grave nature which is likely to drive the wife to commit suicide or to cause grave injury or danger to her life, limb or health whether mental or physical. Similarly, in Gautam Nama (supra) which has also been relied upon by learned counsel of the appellant, this High Court observed that on the basis of mere omnibus statement without specific evidence regarding the particulars of the instances of such torture or cruelty, the accused cannot be held guilty under Section 498A IPC. In the case of Dhananjoy Shil (supra) also it was held by this Court that a single incident of assault may not amount to an offence under Section 498A IPC because cruelty for the purpose of Section 498A is different from other statutory provisions and it is to be established against the appellant that he subjected his wife to cruelty continuously and persistently. It was also held that petty quarrels cannot be termed as cruelty to attract the provisions of Section 498A IPC.[Para No.48]

Refusal by Hindu-wife to wear 'sindoor' is cruelty against husband

Refusal by Hindu-wife to wear 'sindoor' and preventing husband performing duties towards his parents; is cruelty against husband.

   Upon due perusal of the judgment it is seen that the discussion of the court below does not refer to certain pertinent evidences, which were brought before the Court by the contesting parties while adducing evidences. As discussed above, it is not disputed by the respondent wife that there was indeed an agreement entered into by and between the appellant husband and the respondent wife whereby the appellant was required to provide separate accommodation to the respondent wife in a rented house away from the matrimonial house and that the appellant's family members were not to be permitted to come and visit them. The respondent wife categorically admitted in her cross- examination about the presence of the said clause in the said agreement. It is also seen from the evidence that the respondent had filed another case before Digboi Police Station being Digboi P.S. Case No.230/2013, under Sections 471/420 IPC pending before the SDJM, Margherita, District Tinsukia wherein, it was submitted at the bar that charge sheet has been filed against the petitioner and other accused. PW1/appellant also adduced in his evidence that the respondent had refused to wear 'sakha and sindoor' any more. Such statement was not confronted to the appellant during the cross-examination, and accordingly, the same remained uncontroverted and is therefore an evidence material for the purpose of this proceedings. Under the custom of Hindu Marriage, a lady who has entered into marriage according to Hindu rituals and customs, and which has not been denied by the respondent in her evidence, her refusal to wear ' sakha and sindoor' will project her to be unmarried and/or signify her refusal to accept the marriage with the appellant. Such categorical stand of the respondent points to the clear intention of the respondent that she is unwilling to continue her conjugal life with the appellant. Under such circumstances compelling the appellant husband to continue to be in matrimony with the respondent wife may be construed to be harassment inflicted by the respondent upon the appellant and his family members.

This evidence although available before  the Family Court during the evidence adduced, was not taken into account during the discussion in the impugned judgment. As such the Family Court erred in evaluating the evidence in the proper perspective. During the course of hearing it was submitted at the bar that the criminal proceedings pursuant to filing of Digboi P.S. Case No.159/2013, under Section 498(A) IPC against the appellant has been dismissed as the informant, namely the respondent wife was not pursuing the said proceeding. As such the allegation of subjecting the respondent wife to cruelty was not sustained. Such acts of lodging criminal cases on unsubstantiated allegations against the husband and/or the husband's family members amounts to cruelty as held by the Supreme Court. In this context, the Hon'ble Supreme Court in a recent judgment being Rani Narasimha Sastri vs. Rani Suneela Rani, 2019 SCC Online SC 1595 has held that filing of criminal cases like case under Sections 498(A) IPC etc. against the husband and the family members and which are subsequently dismissed/rejected by the Family Court, is sufficient to be construed as an act of cruelty by the wife. The Hon'ble Supreme Court has held as under:.....[Para No.15]

Plaintiff must plead and prove specific instances of cruelty or intention of desertion for obtaining divorce

Section 13 (I) (i-a) clearly provides for grant of decree of divorce on the ground of cruelty which can be physical or mental.

Plaintiff in order to succeed in a suit for divorce on the ground of cruelty must plead and prove specific instances of cruelty or allege and prove such allegations, which if considered singularly or cumulatively make cohabitation impossible.Section 13 (i) (i-b) of Hindu Marriage Act 1955, on the other hand provides for grant of decree of divorce on the ground of 'desertion'. However, in order to seek decree of divorce on the ground of 'desertion', plaintiff must prove that he/she has been deserted for a continuous period of not less than two years immediately, preceding the presentation of the petition. Therefore, what implies from plain reading of Section 13 (i) (i-b) of Act 1955 is that defendant must have deserted petitioner for a continuous period of two years prior to the date of institution of suit. The aforesaid requirement can be termed as a necessary pre- condition for seeking a decree of divorce on ground of desertion. Therefore, it is imperative on the part of plaintiff to plead and prove that defendant has deserted plaintiff and has continued doing so uninterruptedly for a period of two years, prior to the institution of suit. Apart from aforesaid, the issue relating to separate living, (factum deserdendi) and intention of committing desertion (Animus deserdendi) have to be established.[Para. No.31]

Allegations made in plaint are vague and general and do not give specific instances of cruelty. Further allegation of cruelty alleged in plaint if considered either singularly or cumulatively do not lead to the conclusion that co-habitation is not possible.

No infirmity in the dismissal of suit for divorce.